Sunday, 19 April 2015

ANOTHER ONE UNDER RTI

SUBHASH  CHANDRA AGRAWAL &ORS  V/S OFFICE OF ATTORNEY GENERAL OF INDIA DECIDED ON 10.3.2015

In a move that might have far reaching consequences towards creating transparency and accountability in the legal system, the Delhi High Court has ruled that the office of the Attorney General will be covered under the ambit of the Right to Information Act, 2005 (RTI Act). The decision came in view of the writ petition filed by an RTI Activist, Mr. Subhash Chandra Agrawal, which was against the order passed by the full bench of Central Information Commission (CIC) wherein it had held that the office of Attorney General was not a public authority under the RTI Act.

Brief Facts

1. Mr. R.K Jain had filed an application on January 7, 2013 with the office of the Attorney General of India (herein after the “AGI” being the Respondent) seeking information under the RTI Act. The said application was returned stating that as per the decision of the CIC, the office of the AGI is not a “Public Authority”.

2. Mr. Subhash Chandra Agrawal (herein after the “Petitioner) had also filed an application on November 15, .2011 addressed to the CPIO office of the AGI seeking certain information under the RTI Act. The office declined to accept the application and informed the Petitioner, “There is no CPIO in AGI’s Office”.

3. The Petitioner then filed a complaint under Section 18 of the RTI Act and approached the CIC. The CIC vide order dated December 10, 2002 (the “Impugned Order) rejected the complaint filed by the Petitioner and decided against him. The CIC was of the view that the AGI was only a person and could not be considered as an “authority” and hence fell outside the scope of Section 2(h) of the RTI Act.

4. It was against the abovementioned order passed by the CIC that the Petitioner approached this Hon’ble Court.

5. It was contended by the Petitioner that the “office of the AGI is established by virtue of Article 76 of the Constitution of India and, therefore, AGI would be answerable to the people of India.” The petitioners also submitted, “The right to information is a fundamental right under Article 19(1) (a) of the Constitution of India and, therefore, the RTI Act must be interpreted in furtherance of the said fundamental right.

6. On the contrary, it was contended by the Respondent that , “the AGI does not have the necessary infrastructure to support the applicability of the RTI Act in as much as, the AGI is a single person office and, therefore, would have to act as a CPIO as well as the Appellate Authority. Since the same is not feasible, the AGI cannot be held as Public Authority.”
Issue for Consideration

The main issue for consideration was:-

1. Whether the office of Attorney General of India is a “Public Authority” within the meaning of section 2(h) of the Right to Information Act, 2005?

Decision of the Court

1. The High Court analyzed Article 76 of the Constitution that mandates for office of the Attorney General and also delved upon the conditions of services of the AGI under Article 309 of the Constitution that are also applicable to Law Officers ( the term law officer includes the AGI). Article 76 of the Constitution of India provides for the appointment of the Attorney General for India and reads as under:-

"76. Attorney-General for India.-(1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.
(2) It shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) In the performance of his duties the Attorney-General shall have right of audience in all courts in the territory of India.
(4) The Attorney-General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine."
2. The court rejected the contentions raised by the Respondent and held The expression “authority” would also include all persons or bodies that have been conferred a power to perform the functions entrusted to them. Merely because the bulk of the duties of the AGI are advisory, the same would not render the office of the AGI any less authoritative than other constitutional functionaries. There are various bodies, which are entrusted with ‘staff functions’ (i.e. which are advisory in nature) as distinct from ‘line functions’. The expression “authority” as used in Section 2(h) cannot be read as a term to exclude bodies or entities which are, essentially, performing advisory functions.”
3. The court also stated that, “The expression ‘authority’ as used in Section 2(h) of the Act would encompass any office that is conferred with any statutory or constitutional power. The office of the AGI is an office established under the Constitution of India; the incumbent appointed to that office discharges functions as provided under the Constitution. Article 76(2) of the Constitution expressly provides that the AGI would perform the duties of a legal character and also discharge the functions conferred on him under the Constitution or any other law in force. Indisputably, the appointee to that office is, by virtue the constitution, vested with the authority to discharge those functions.”
4. The court further negated the reference to the meaning of the term “authority” under Article 12 of the Constitution of India and negated the reliance placed by the Respondent on certain cases by observing, “The decisions of the court rendered in the cases cited are under Article 12 of the Constitution of India and it may not be apposite to apply them for interpreting Section 2(h) of the RTI Act.”
5. However, the court didn’t focus on the issue of the disclosure of the information if the same falls under the ambit of the exceptions listed in Section 8 of the RTI Act.

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